Burt v. PHH Mortgage Corporation et al

Filing 83

MEMORANDUM & ORDER granting 56 Motion to Dismiss for Failure to State a Claim; granting 57 Motion to Dismiss for Failure to State a Claim; granting 76 Motion to Dismiss for Failure to State a Claim; terminating 80 Motion to Dismiss; te rminating 81 Motion to Dismiss; terminating 82 Motion to Dismiss; For the foregoing reasons, Ricciardi's motion to dismiss (Docket Entry 56) is GRANTED, and Plaintiff's claims against Ricciardi are DISMISSED WITH PREJUDICE. Shapiro and PHH's motions to dismiss (Docket Entries 57, 76) are GRANTED, and Plaintiff's claims against Shapiro and PHH are DISMISSED WITHOUT PREJUDICE. Defendants' letter motions to dismiss (Docket Entries 80, 81, 82) are TERMINATED AS MOOT . Plaintiff is GRANTED leave to file a Second Amended Complaint to add allegations to support her claims under sections 1692c and 1692d against Shapiro and PHH within thirty (30) days of the date of this Memorandum and Order. Leave to amend is DENIED as to the section 1692g claim and the claim against Ricciardi. The Clerk of the Court is directed to mail a copy of this Order to the pro se Plaintiff. So Ordered by Judge Joanna Seybert on 1/25/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
CHARISE L. BURT,
Plaintiff,

MEMORANDUM & ORDER
15-CV-3887(JS)(AYS)

-against–
PHH MORTGAGE CORPORATION, SHAPIRO,
DICARO & BARAK, LLC, MARK RICCIARDI
and JOHN DOE 1-3,
Defendants.
-------------------------------------X
APPEARANCES
For Plaintiff:
Charise L. Burt, pro se
24 Conlon Road
Roosevelt, New York 11575
For Defendant
PHH Mortgage
Corporation:

For Defendant
Shapiro, DiCaro
& Barak, LLC:

For Defendant
Mark Ricciardi:

For Defendant
John Doe 1-3:

John Fincey, Esq.
McGlinchey Stafford
112 West 34th Street, Suite 1403
New York, New York 10120

John A. DiCaro, Esq.
Shapiro, DiCaro & Barak, LLC
175 Milecrossing Blvd.
Rochester, New York 14624
James N. Joseph, Esq.
Joseph & Terracciano, LLP
2 Roosevelt Avenue, Suite 200
Syosset, New York 11791
No appearance

SEYBERT, District Judge:
This dispute relates to the foreclosure of a residential
property

in

Roosevelt,

New

York.

Plaintiff

Charise

Burt

(“Plaintiff”) alleges that Defendants PHH Mortgage Corporation
(“PHH”), Shapiro, DiCaro & Barak, LLC (“Shapiro”), Mark Ricciardi
(“Ricciardi”)

and

John

Doe

1-3

(“John

Does”)

(collectively,

“Defendants”) violated the Fair Debt Collection Practices Act
(“FDCPA”).

(Am. Compl., Docket Entry 53, ¶ 1.)

Presently pending

before the Court are Riccardi, Shapiro, and PHH’s motions to
dismiss for failure to state a claim.

(Ricciardi Mot., Docket

Entry 56; Shapiro Mot., Docket Entry 57; PHH Mot., Docket Entry
76.)

For

the

following

reasons,

the

motions

are

GRANTED.

Plaintiff is also GRANTED leave to file a Second Amended Complaint
as set forth below.
BACKGROUND
I.

Factual Background1
Plaintiff executed a mortgage note on October 12, 2004,

which was secured by a residence at 24 Conlon Road in Roosevelt,

As explained in more detail infra, the Court will treat the
Amended Complaint at Docket Entry 53 as the operative complaint
in this action. The following facts are taken from the Amended
Complaint (Am. Compl.) and are presumed to be true for the
purposes of this Memorandum and Order. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572, 127 S. Ct. 1955, 1975, 167 L. Ed. 2d
929 (2007) (“[A] judge ruling on a defendant’s motion to dismiss
a complaint must accept as true all of the factual allegations
contained in the complaint.” (internal quotation marks and
citation omitted)).
1

2

New York.
19.)

(Am. Compl. ¶ 10; Shapiro Ex. B, Docket Entry 61, at

The mortgagee was Merrill Lynch Credit.

(Am. Compl. ¶ 10.)

Plaintiff was found to be in default as of February 1, 2011.
Compl. ¶ 11.)

(Am.

Thereafter, Plaintiff went to the public recorder’s

office and discovered that the note was assigned to PHH on May 11,
2011.2

(Am. Compl. ¶¶ 12-13; Pl.’s Ex. A, Docket Entry 53, at 9-

10.)3

On August 31, 2011, Defendant Shapiro, on behalf of PHH,

commenced a foreclosure action in New York State Supreme Court.
(Shapiro Ex. B, at 2.)
On October 9, 2014, Plaintiff served a Notice of Dispute
on Defendants pursuant to 15 U.S.C. § 1692g, requiring that they
“validate
creditor.”
13.)

the

alleged

debt

and

obtain

verification

from

the

(Am. Compl. ¶ 16; Pl.’s Ex. B, Docket Entry 53, at 11-

She never received verification of the debt.

(Am. Compl.

¶ 16.)
Plaintiff further alleges that she did not give prior
consent for Defendants to contact her and that Defendants acquired
certain data from a third party and “used such data in abusive
conduct” toward her.
Defendants

“engaged

(Am. Compl. ¶¶ 14-15.)
in

abusive

behavior,

She maintains that
trespass[ed]

Plaintiff alleges that her discovery of the assignment
qualifies as an “initial communication” under the FDCPA.
Compl. ¶ 13.)
2

(Am.

The Court will use the pagination assigned by the Electronic
Case Filing System when referring to the exhibits.
3

3

in

[P]laintiff’s

private

commercial

affairs

as

well

harass[ed] and invade[d] [P]laintiff’s privacy.”
18.)

as

.

.

.

(Am. Compl. ¶

Additionally, Plaintiff alleges that she suffered headaches,

nausea, embarrassment, and insomnia as a result of Defendants’
conduct and seeks the following relief: (1) a declaratory judgment
that

Defendants

violated

the

FDCPA,

(2)

$1,000

in

statutory

damages, (3) $250,000 in actual damages, (4) $500,000 in punitive
damages, (5) costs, fees and expenses, and (6) an injunction
preventing Defendants from further debt collection activity.

(Am.

Compl. ¶ 22, and at 5.)
II.

Procedural History
Plaintiff

commenced

this

action

on

July

2,

2015,

alleging that Defendants violated the FDCPA and New York General
Business Law (“NYGBL”) § 349.

(Compl., Docket Entry 1, ¶ 1.)

Defendants subsequently moved to dismiss the Complaint for failure
to state a claim.

(Shapiro Mot., Docket Entry 11; Ricciardi Mot.,

Docket Entry 31; PHH Mot., Docket Entry 34.) Thereafter, Plaintiff
filed a motion to amend her Complaint.

(Docket Entry 39.)

On

October 15, 2015, PHH filed a motion to consolidate this matter
with a related action that PHH had previously removed to this
Court.

(Docket Entry 42.)
During a conference on January 8, 2016, the Court granted

PHH’s motion to consolidate and consolidated this action with Burt
v. PHH Mortgage Corp., 15-CV-5274.
4

(Minute Order, Docket Entry

50.)

In addition, the Court granted Plaintiff’s motion to amend

and directed her to file an Amended Complaint containing the
allegations in both actions.

Defendants’ motions to dismiss were

terminated pending the filing of the Amended Complaint.
Minute Order.)
2016.

(See

Plaintiff filed her Amended Complaint on March 7,

(See Am. Compl.)

She appears to allege that Defendants

violated several provisions of the FDCPA, including 15 U.S.C.
§§ 1692g, 1692c, and 1692d.4

(Am. Compl. ¶¶ 16, 18.)

Ricciardi,

Shapiro and PHH filed their motions to dismiss on March 21, 2016,
March 31, 2016 and April 6, 2016, respectively.

(Mots., Docket

Entries 56, 57, 76.)
On April 27, 2016, Plaintiff filed a document captioned
“Plaintiff’s Second Amended Claim for Damages.”
79.)

(Docket Entry

Thereafter, PHH filed a letter motion to dismiss and argued

that because Plaintiff did not oppose its motion to dismiss, the
motion should be granted on that basis alone.

PHH further argued

that Plaintiff improperly filed a Second Amended Complaint without

Although Plaintiff does not refer to section 1692d
specifically, she alleges that Defendants “engaged in abusive
behavior.” (Am. Compl. ¶ 18.) When a plaintiff is proceeding
pro se, the Court “is required to read the complaint liberally
and interpret it as raising the strongest argument it suggests.”
Brooks v. N.Y.C. DOC Comm’r, No. 14-CV-6283, 2016 WL 4530456, at
*2 (E.D.N.Y. Aug. 29, 2016). As such, the Court construes this
allegation as interposing a claim under section 1692d of the
FDCPA. Section 1692d prohibits “a debt collector . . . [from]
engag[ing] in any conduct the natural consequence of which is to
harass, oppress or abuse any person in connection with the
collection of a debt.” 15 U.S.C. 1692d.
4

5

leave of the Court.

(PHH Ltr. Mot., Docket Entry 80, at 1.)

Ricciardi and Shapiro joined PHH’s motion.
Entries 81, 82.)

(Ltr. Mots., Docket

While Plaintiff’s “Second Amended Claim for

Damages” is formatted like a complaint, the Court construes this
document as Plaintiff’s opposition to the motions to dismiss, as
it appears to respond to Defendants’ arguments and it was filed on
the last day for Plaintiff to file an opposition brief.
DISCUSSION
I.

Legal Standard
To survive a motion to dismiss, a complaint must plead

“enough facts to state a claim to relief that is plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct.

1955, 1974 (2007). A claim is plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949, 173
L.

Ed.

2d

868

(2009).

Although

the

Court

must

accept

all

allegations in the Amended Complaint as true, this tenet is
“inapplicable to legal conclusions.”

Id.

Thus, “[t]hreadbare

recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”

Id. (citation omitted).

Ultimately, the Court’s plausibility determination is a “contextspecific task that requires the reviewing court to draw on its

6

judicial experience and common sense.”

Id. at 679, 129 S. Ct. at

1950.
A complaint filed by a pro se litigant is to be construed
liberally and “however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.
Ed. 2d 1081 (2007) (internal quotation marks and citation omitted).
See also Hiller v. Farmington Police Dep’t, No. 12-CV-1139, 2015
WL 4619624, at *7 (D. Conn. July 31, 2015) (noting that the
dismissal of a pro se complaint pursuant to Rule 12(b)(6) is not
appropriate “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief”) (internal quotation marks and citations omitted).
Nevertheless, a pro se complaint must state a plausible claim for
relief and comply with the minimal pleading standards set forth in
Federal Rule of Civil Procedure 8. Hiller, 2015 WL 4619624, at *7.
In deciding a motion to dismiss, the Court is generally
confined to “the allegations contained within the four corners of
[the] complaint.”

Pani v. Empire Blue Cross Blue Shield, 152 F.3d

67, 71 (2d Cir. 1998).

However, the Court may consider “any

written instrument attached to [the complaint] as an exhibit,
materials incorporated in it by reference, and documents that,
although

not

complaint.”

incorporated

by

reference,

are

integral

to

the

Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)
7

(internal quotation marks and citation omitted); see also Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (observing
that a document is “integral” if the complaint “relies heavily
upon its terms and effect”) (internal quotation marks and citation
omitted).

Further, the Court is permitted to take judicial notice

of facts contained in publicly available documents, including, in
this case, the filings in a State Court foreclosure proceeding.
See Person v. White, 09-CV-3920, 2010 WL 2723210, at *3 (E.D.N.Y.
July 2, 2010) (quoting Commer v. McEntee, 00-CV-7913, 2006 WL
3262494, at *23 (S.D.N.Y. Nov. 9, 2006) (“[T]he Court may take
judicial

notice

of . . . matters

of

general

public

record

. . . .”).
II.

The Fair Debt Collection Practices Act5
The FDCPA “establishes certain rights for consumers

whose debts are placed in the hands of professional debt collectors
for collection.”

DeSantis v. Computer Credit, Inc., 269 F.3d 159,

161 (2d Cir. 2001); see also 15 U.S.C. § 1692(e) (describing that
the purpose of the statute is “to eliminate abusive debt collection
practices”).

To assert a claim under the FDCPA, Plaintiff must

satisfy three threshold requirements: (1) she was a “consumer”;

Plaintiff’s claim under NYGBL § 349 is deemed ABANDONED because
she did not include it in her Amended Complaint. See Ping Tou
Bian v. Taylor, 23 F. App’x 75, 77 (2d Cir. 2001) (“It is wellestablished that an amended complaint ordinarily supersedes the
original and renders it of no legal effect.”) (internal
quotation marks omitted).
5

8

(2) Defendants were “debt collector[s]”; and (3) Defendants’ act
or omission violated the FDCPA.

See Polanco v. NCO Portfolio

Mgmt., Inc., 132 F. Supp. 3d 567, 578 (S.D.N.Y. 2015) (internal
quotation marks and citation omitted).
Plaintiff appears to allege that Defendants’ conduct
violated sections 1692g, 1692c and 1692d of the FDCPA.

Section

1692g

initial

requires

that

“[w]ithin

five

days

after

the

communication with a consumer in connection with the collection of
any debt, a debt collector shall . . . send the consumer a written
notice,” known as a validation notice.

15 U.S.C. § 1692g(a).

The

notice is required to contain certain information, including “the
amount of the debt,” “the name of the creditor to whom the debt is
owed,” and a series of statements outlining the dispute procedures.
15 U.S.C. § 1692g(a)(1)-(5); see also Douyon v. N.Y. Med. Health
Care, P.C., 894 F. Supp. 2d 245, 255 (E.D.N.Y. 2012), amended on
reconsideration,

2013

WL

5423800

(E.D.N.Y.

Sept.

25,

2013).

Notably, the provision states that “unless the consumer, within
thirty days after receipt of the notice, disputes the validity of
the debt, or any portion thereof, the debt will be assumed to be
valid by the debt collector.”

§ 1692g(a)(3).

If the consumer

disputes the debt in writing within the thirty-day period, the
debt

collector

activities

until

is

prohibited

from

a

verification

of

9

engaging
the

debt,

in
a

collection

copy

of

the

judgment, or the identity of the original creditor is provided to
the consumer.

§ 1692g(b).

Section 1692c sets forth specific guidelines regarding
when and how debt collectors can contact consumers.

Unless the

consumer consents, debt collectors are prohibited from contacting
consumers

at

certain

times,

contacting

consumers

who

are

represented by an attorney, contacting third parties about a
consumer’s

debt,

employment.

and

contacting

consumers

at

15 U.S.C. §§ 1692c(a), 1692c(b).

their

place

of

If a consumer

notifies the debt collector in writing that she refuses to pay the
debt, or that she wishes communication regarding the debt to cease,
the debt collector is required to cease communication except in
certain narrow circumstances.

§ 1692c(c).

Finally, section 1692d prohibits debt collectors from
engaging “in any conduct the natural consequence of which is to
harass, oppress, or abuse any person in connection with the
collection of a debt.”
A.

15 U.S.C. § 1692d.

Ricciardi’s Motion to Dismiss
Ricciardi argues that he is not a debt collector as

defined by the FDCPA.6

(Ricciardi Br., Docket Entry 56-1, at 9.)

Subject to certain exceptions not relevant here, the statute
defines

6

a

debt

collector

as

“any

person

who

uses

any

Plaintiff did not respond to this argument in her opposition.
10

instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the collection of any debts, or
who

regularly

collects

or

attempts

to

collect,

directly

or

indirectly, debts owed or due or asserted to be owed or due
another.”

15 U.S.C. § 1692a(6).

Ricciardi is a New York State

Court Referee who was appointed by the state court judge presiding
over the foreclosure action to “ascertain and compute the amount
due, determine whether the premises may be sold in parcels, conduct
a

hearing

and

take

(Ricciardi Br. at 9.)

testimony

.

.

.

and

conduct

the

sale.”

He contends that he was appointed “after

the commencement of the [s]tate foreclosure action and after
Plaintiff defaulted in answering the foreclosure complaint and
liability for the debt was determined by the Court.”

(Ricciardi

Br. at 7.)
Ricciardi does not “regularly collect[ ] or attempt[ ]
to collect . . . debts” nor was he engaged in “any business the
principal purpose of which [was] the collection of debts.”
§ 1692a(6).
manage

See

Rather, he was appointed by the state court judge to

certain

aspects

of

the

foreclosure

proceeding

after

liability was determined. (Ricciardi Br. at 7; Order of Reference,
Ricciardi Ex. D, Docket Entry 56-6, at 3.)

11

Accordingly, Ricciardi

is not a debt collector subject to liability under the FDCPA, and
his motion to dismiss is GRANTED.
B.

Shapiro and PHH’s Motions to Dismiss
Shapiro and PHH argue that the Amended Complaint fails

to state a claim under the FDCPA.

(Shapiro Br., Docket Entry 58,

at 5-6; PHH Br., Docket Entry 77, at 5-6.)

Additionally, they

argue that Plaintiff’s section 1692g claim fails as a matter of
law.

(Shapiro Br. at 8-9; PHH Br. at 6-9.)
The Court agrees that the Amended Complaint fails to

state a claim under section 1692g.

Plaintiff alleges that she

served a Notice of Dispute on October 9, 2014 which “require[d]
defendants

.

.

.

to

validate

verification from the creditor.”

the

alleged

debt,

and

obtain

(Am. Compl. ¶ 16; Pl.’s Ex. B.)

However, the thirty-day period prescribed by section 1692g had
already expired because Plaintiff was served with the validation
notice on September 8, 2011 (the “Validation Notice”).

(Aff. of

Serv., Shapiro Ex. C, Docket Entry 62; Validation Notice, Shapiro
Ex. D, Docket Entry 63.) As a result, Shapiro and PHH were entitled
to assume that the debt was valid.

See Munroe v. Specialized Loan

Servicing LLC, 14-CV-1883, 2016 WL 1248818, at *7 (E.D.N.Y. Mar.
28, 2016) (“Because Plaintiff failed to dispute the validity of
the

defaulted

mortgage

debt

within

the

applicable

thirty-day

period, Defendants were entitled to assume the debt was valid, and
Plaintiff’s section 1692g claim fails as a matter of law.”).
12

Therefore,

Plaintiff’s

section 1692g

claim

is

DISMISSED

WITH

PREJUDICE.
Plaintiff’s
discern.

remaining

allegations

are

difficult

to

She refers to section 1692c, (Am. Compl. ¶ 16), and

alleges conduct that may violate section 1692d, (Am. Compl. ¶ 18),
but

fails

to

allege

any

facts

to

support

these

claims.

Specifically, she fails to allege that Shapiro or PHH communicated
with her in a manner prohibited by section 1692c, or that they
continued to contact her after she requested that they cease
communications.

See § 1692c(a), (c).

Although Plaintiff alleges

that Shapiro and PHH engaged in “abusive behavior, trespass[ed] in
[P]laintiff’s private commercial affairs as well as harass[ed] and
invad[ed] [P]laintiff’s privacy,” (Am. Compl. ¶ 18), she fails to
set forth the “abusive behavior” they engaged in or when it
occurred.

Although

a

pro

se

complaint

is

to

be

construed

liberally, see Erickson, 551 U.S. at 94, 127 S. Ct. at 2200, 167
L. Ed. 2d 1081, the Court finds that Plaintiff’s allegations are
insufficient to state a plausible FDCPA claim.

Accordingly,

Shapiro and PHH’s motions to dismiss the remaining claims are
GRANTED.
C.

Leave to Amend
The Second Circuit has held that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend
the complaint.”

Hayden v. Cty. of Nassau, 180 F.3d 42, 53 (2d
13

Cir. 1999), overruled on other grounds, Gonzaga v. Doe, 536 U.S.
273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002).

See also FED. R. CIV.

P. 15(a)(2) (“The court should freely give leave [to amend] when
justice so requires.”).

“However, a district court has the

discretion to deny leave to amend where there is no indication
from a liberal reading of the complaint that a valid claim might
be stated.”

Perri v. Bloomberg, No. 11-CV-2646, 2012 WL 3307013,

at *4 (E.D.N.Y. Aug. 13, 2012).
In light of Plaintiff’s pro se status, the Court will
allow Plaintiff to amend her complaint.

See Brooks v. N.Y.C. DOC

Comm’r, No. 14-CV-6283, 2016 WL 4530456, at *7 (E.D.N.Y. Aug. 29,
2016) (“Certainly the court should not dismiss without granting
leave to amend at least once when a liberal reading of the [pro
se] complaint gives any indication that a valid claim might be
stated.”) (alteration in original).
The Court recognizes that PHH and Shapiro contend that
Plaintiff’s claims are barred by claim preclusion and the statute
of limitations, or alternatively, should be dismissed because
Plaintiff

was

proceeding.

represented

by

counsel

during

the

(Shapiro Br. at 4-7; PHH Br. at 3-5.)

foreclosure
However, the

Court declines to determine whether dismissal is appropriate on
these grounds at this juncture in the absence of specific factual
allegations.

14

Therefore, the Court GRANTS Plaintiff leave to amend her
Amended Complaint to add specific allegations to support her claims
under sections 1692c and 1692d against Shapiro and PHH.

Leave to

amend is DENIED as to Plaintiff’s section 1692g claim and her claim
against Ricciardi. Plaintiff is advised that if she fails to amend
her Amended Complaint within the time period set by the Court, the
case will be dismissed with prejudice.
CONCLUSION
For the foregoing reasons, Ricciardi’s motion to dismiss
(Docket Entry 56) is GRANTED, and Plaintiff’s claims against
Ricciardi are DISMISSED WITH PREJUDICE.

Shapiro and PHH’s motions

to dismiss (Docket Entries 57, 76) are GRANTED, and Plaintiff’s
claims against Shapiro and PHH are DISMISSED WITHOUT PREJUDICE.
Defendants’ letter motions to dismiss (Docket Entries 80, 81, 82)
are TERMINATED AS MOOT.

[BOTTOM OF PAGE INTENTIONALLY LEFT BLANK]

15

Plaintiff is GRANTED leave to file a Second Amended
Complaint to add allegations to support her claims under sections
1692c and 1692d against Shapiro and PHH within thirty (30) days of
the date of this Memorandum and Order.

Leave to amend is DENIED

as to the section 1692g claim and the claim against Ricciardi.
The Clerk of the Court is directed to mail a copy of this Order to
the pro se Plaintiff.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

Dated:

January
25 , 2017
Central Islip, New York

16